Between a rock and a hard place

When news first broke in January 2016 of a York man being the subject of a draconian court order concerning his sexual activity with the opposite sex, it attracted widespread publicity.

Sexual risk orders are a civil remedy and can be imposed when the respondent has not been convicted of a sexual offence. The police are required to successfully argue before a court that it is necessary for such an order to be made to protect the public.

At the time, the person who was the subject of the order was granted anonymity. He has since waived that right and freely identified himself to the media as IT consultant, John O’Neill.

The application for the interim order was made, nominally, by the Chief Constable of North Yorkshire following remarks made by Simon Bourne-Arton QC, who sits as Recorder of Middlesborough,after a jury acquitted Mr O’Neill in a rape re-trial at Teeside Crown Court in November, 2015. The not guilty verdict was delivered despite hearing that he harboured rape fantasies.

Once the jury had been discharged the judge the told the court that, in his informed view, the defendant was a “very dangerous individual” and that the relevant authorities should be notified. That would, of course have principally involved NYP.

As the risk order case has unfolded, at two subsequent hearings at York Magistrates Court, there seems little doubt that HHJ Bourne-Arton was correct in his assessment of Mr O’Neill.

Indeed, in more restrained terms, the district judge hearing the application for a full sexual risk order, Adrian Lower, has also been critical of Mr O’Neill: “I have found him to be a manipulative and grandstanding individual”

He added: “There is a narcissistic strain to Mr O’Neill which does trouble me as to his future behaviour with others – and what he may say and do to them.”

The magistrates court heard lurid testimony from medical professionals about Mr O’Neill’s sexual predilictions, and masochistic tendencies, that most people would find concerning at best, and deeply troubling at worst. In the light of this evidence, District Judge Lower, and in the absence of credible rebuttal, or persuasive legal argument against it, the sexual risk order will be made permanent at the next hearing.

Mr O’Neill’s principal complaint was that the order breached his human rights by way of depriving him of an opportunity to form a relationship and that it had, also, meant he was unable to find work.

Having initially harboured serious reservations on due process, liberty and human rights grounds, I am now left musing upon whether Mr O’Neill might have been better served by an order sectioning him under the Mental Health Act. Particularly, as he is homeless, jobless, seemingly friendless, and currently living in a tent in woods on the rural outskirts of York.

It is also true to say that I was publicly critical of North Yorkshire Police at the time, over what I perceived as the absurdity of some of the terms of the interim order.

Justification of that criticism came in the unlikely form of District Judge Lower as he described the 24 hour notice Mr O’Neill must give police before having sex with a new partner as “wholly disproportionate” and “frankly unpoliceable”.

The court also heard that he was “uncomfortable” about the ban on using computer equipment saying such an order was normally reserved for people convicted of accessing indecent pictures of children.

The judge is to review the precise terms of the order and hand down his judgment at a hearing on 22nd September, 2016 at the same court.

It does also trouble me that Mr O’Neill was unrepresented at the hearing. Either by counsel, or expert medical opinion as to his mental state. It is not known if civil legal aid was refused, or even applied for, as Mr O’Neill has been ruled ineligible for Universal Credits. But, in a case with such potentially far reaching implications, it was important that justice was not only done, but seen to be done.

BBC Radio 4’s Today programme heard from well known sex offence advocate, Eleanor Laws QC, ahead of the hearing. She told listeners: “In order to lift an order like that you, firstly, have to make it very clear that you were acquitted, you have to ask the police to make it clear upon what they are basing their submissions that he is a danger, bearing in mind that he was acquitted”

“Secondly that the order is proportionate to the risk”

“And, thirdly, the order has to be capable of being policed.”

There was, in my view, a clear public interest argument in favour of the profligate Police and Crime Commissioner for North Yorkshire, Julia Mulligan, funding a constituent’s legal fees in these novel circumstances. It will be much too late to trot out ‘lessons learned’ if there is an inquest into either Mr O’Neill’s death or, heaven forbid, the death of an innocent third party.

North Yorkshire Police were represented in the sexual risk order matter by Leeds barrister, Oliver Thorne. Which caught my eye as Mr Thorne represented West Yorkshire Police at an employment tribunal in Leeds from which I reported in 2013.

It was a troubled case that involved a female police officer who had, allegedly, been raped by a male police officer – and heard before leading tribunal judge, Humphrey Forrest. The article I wrote at the time noted that Mr Thorne “appeared to struggle with the case throughout the opening day of the hearing”. Nonetheless, the police (and Mr Thorne) succeeded in resisting the claimant who, incidentally, was also legally unrepresented.

A freedom of information request has been submitted to North Yorkshire Police to discover who is Mr Thorne’s instructing solicitor and whether, in fact, Mr Thorne was responsible for drafting the “unworkable” interim sexual risk order that is now the subject of widespread criticism (follow progress of the FoI request here).

North Yorkshire Police had previously told the BBC’s Victoria Derbyshire programme that “it was satisfied the order was proportionate”.

The terms of the final order drafted by District Judge are awaited with interest, as is the decision by Mr O’Neill whether or not to appeal the decision to the higher courts – with or without legal representation.